DETAILED ACTION
Applicant's response, filed 13 March 2026, has been fully considered. Rejections and/or objections not reiterated from previous Office Actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Status
Claims 1-6, 8-12, and 14-15 are currently pending and under exam herein.
Claims 7 and 13 have been cancelled.
Claim 15 is newly added.
Claim Interpretation under 35 U.S.C. 112(f)
Applicant has amended the claim limitations so as to avoid them being interpreted under 35 U.S.C. 112(f) by reciting sufficient structure to perform the claimed functions (e.g., a computer-implemented acquisition unit; a computer-implemented mixing unit; a computer-implemented transform unit and a computer-implemented analysis unit adapted to).
Claim Rejections-35 USC § 112(b)-Indefiniteness
The outstanding rejections under 35 USC 112(b) are withdrawn in view of the claim amendments presented herein.
Newly recited rejection are necessitated by claim amendment herein.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claim 15 is rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 15 recites, “determining which of the first frequency spectrum and the second frequency spectrum provides greater distinguishability between physiological conditions” wherein the terms “greater” and “distinguishability” in claim 15 is a relative term which renders the claim indefinite. The terms are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Clarification to include exact parameters for said determinations is requested.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-6, 8-12, and 14-15 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
The instant rejection reflects the framework as outlined in the MPEP at 2106.04:
Framework with which to Evaluate Subject Matter Eligibility:
(1) Are the claims directed to a process, machine, manufacture or composition of matter;
(2A) Prong One: Do the claims recite a judicially recognized exception, i.e. a law of nature, a natural phenomenon, or an abstract idea;
Prong Two: If the claims recite a judicial exception under Prong One, then is the judicial exception integrated into a practical application (Prong Two); and
(2B) If the claims do not integrate the judicial exception, do the claims provide an inventive concept.
Framework Analysis as Pertains to the Instant Claims:
Step 1 Analysis: Are claims directed to process, machine, manufacture/composition of matter
With respect to step (1): yes, the claims are directed to a method and system for converting physiological signals.
Step 2A, Prong 1 Analysis: Do claims recite abstract idea
With respect to step (2A)(1), the claims recite abstract ideas. The MPEP at 2106.04(a)(2) further explains that abstract ideas are defined as:
mathematical concepts, (mathematical formulas or equations, mathematical relationships and mathematical calculations);
certain methods of organizing human activity (fundamental economic practices or principles, managing personal behavior or relationships or interactions between people); and/or
mental processes (procedures for observing, evaluating, analyzing/ judging and organizing information).
With respect to the instant claims, under the (2A)(1) evaluation, the claims are found herein to recite abstract ideas that fall into the grouping of mental processes (in particular procedures for observing, analyzing and organizing information) and in conjunction with mathematical concepts (in particular mathematical relationships and formulas).
The claim steps to abstract ideas are as follows:
Claim 1:
Mixing…the first signal (S1) and the second signal (S2) to obtain a mixed signal (M), which is an abstract process step performed by mathematical analysis (see, for example, the Specification at [0069] describing the mixing process as a linear combination that includes the formula M(t)=a S 1(t)+b S 2 +C). Said operation can be performed using pen and paper or with the aid of a computer.
Generating… a first frequency spectrum based at least in part on the mixed signal (M) by subjecting the mixed signal (M) to a first integral transform, which is an abstract process step performed by mathematical analysis (see, for example, the Specification at [0032] describing the process by integral transform; [0077] describing integral transform T to the missed signal M(t) in the form M→T[M]). Said operation can be performed using pen and paper or with the aid of a computer.
Comparing…the first frequency spectrum with the second frequency spectrum, wherein the second frequency spectrum is generated by subjecting the mixed signal (M) to a second integral transform different from the first integral transform, which is an abstract process step performed by mental assessment of comparing data and of mathematical analysis (see, for example, the Specification at [0032] describing the process by integral transform; [0077] describing integral transform T to the missed signal M(t) in the form M→T[M]). Said operation can be performed using pen and paper or with the aid of a computer.
Determining…a physiological condition of the subject based at least in part on the comparison of the first frequency spectrum with the second frequency spectrum wherein said operation is a mental step of comparing one data to another. There are no specific steps or parameters that define what is the process for said determining and under the BRI said operations can be performed by mental assessment.
Claims 3:
normalizing the first signal (S1) and/or normalizing the second signal (S2), prior to mixing the first signal (S1) and the second signal (S2), which is an abstract process step performed by mathematical analysis (see the Specification at [0073] describing the process of normalization as, for example: dividing the first signal S1(t) by a first maximum value |S1| attained by the first signal over the first time interval t1≤t≤T1 with predetermined interval boundaries t1, T1. Similarly, normalizing the second signal S2(t) may comprise dividing the second signal S2(t) by a second maximum value |S2| attained by the second signal over the second time interval t2≤t≤T2 with predetermined interval boundaries t2, T2). Said operation can be performed using pen and paper or with the aid of a computer.
Claim 4:
normalizing the first signal (S1) comprises dividing the first signal (S1) by a first maximum value attained by the first signal (S1) over a predetermined first time interval; and/or
normalizing the second signal (S2) comprises dividing the second signal (S2) by a second maximum value attained by the second signal (S2) over a predetermined second time interval, which is an abstract process step performed by mathematical analysis (see the Specification at [0073]). Said operation can be performed using pen and paper or with the aid of a computer.
Claim 5:
mixing the first signal (S1) and the second signal (S2) comprises linearly combining the first signal (S1) and the second signal (S2), in particular with equal weights of the first signal (S1) and the second signal (S2) which is an abstract process step performed by mathematical analysis (see the Specification at [0032]). Said operation can be performed using pen and paper or with the aid of a computer. Claim 6 further defines the “mixed signal” terms and further defines the judicial exception, as such.
Claim 9:
comparing the first frequency spectrum with a reference frequency spectrum, and/or with a second frequency spectrum…determining…, wherein said operation of “comparing” data and “determining” are abstract, mental processes by which one can observe and calculate using pen and paper to fairly compare two types or sets of data and make determination based thereon.
Claim 10:
Mix the first signal (S1)and the second signal (S2) to obtain a mixed signal (M), which is an abstract process step performed by mathematical analysis (see, for example, the Specification at [0069] describing the mixing process as a linear combination that includes the formula M(t)=a S 1(t)+b S 2 +C). Said operations as directed by the system are performed with the aid of a computer.
generate a first frequency spectrum based at least in part on the mixed signal (M), which is an abstract process step performed by mathematical analysis (see, for example, the Specification at [0032] describing the process by integral transform; [0077] describing integral transform T to the missed signal M(t) in the form M→T[M]). Said operations as directed by the system are performed with the aid of a computer.
Compare…the first frequency spectrum with the second frequency spectrum, wherein the second frequency spectrum is generated by subjecting the mixed signal (M) to a second integral transform different from the first integral transform, which is an abstract process step performed by mental assessment of comparing data and of mathematical analysis (see, for example, the Specification at [0032] describing the process by integral transform; [0077] describing integral transform T to the missed signal M(t) in the form M→T[M]). Said operation can be performed using pen and paper or with the aid of a computer.
Determine…a physiological condition of the subject based at least in part on the comparison of the first frequency spectrum with the second frequency spectrum wherein said operation is a mental step of comparing one data to another. There are no specific steps or parameters that define what is the process for said determining and under the BRI said operations can be performed by mental assessment.
Claim 11:
normalize the first signal (S1) and/or adapted to normalize the second signal (S2), which is an abstract process step performed by mathematical analysis (see the Specification at [0073] describing the process of normalization as, for example: dividing the first signal S1(t) by a first maximum value |S1| attained by the first signal over the first time interval t1≤t≤T1 with predetermined interval boundaries t1, T1. Similarly, normalizing the second signal S2(t) may comprise dividing the second signal S2(t) by a second maximum value |S2| attained by the second signal over the second time interval t2≤t≤T2 with predetermined interval boundaries t2, T2). Said operations as directed by the system are performed with the aid of a computer.
Claim 12:
linearly combine the first signal (S1) and the second signal (S2), in particular with equal weights of the first signal (S1) and the second signal (S2) which is an abstract process step performed by mathematical analysis (see the Specification at [0032]). Said operations as directed by the system are performed with the aid of a computer.
Claim 14:
compare the frequency spectrum pertaining to the mixed signal (M) with a reference frequency spectrum, and/or with a second frequency spectrum, wherein said operation of “comparing” data is an abstract, mental process by which one can observe and calculate using pen and paper to fairly compare two types or sets of data. Said operations as directed by the system are performed with the aid of a computer.
Claim 15:
determining which of the first frequency spectrum and the second frequency spectrum provides greater distinguishability between physiological conditions, wherein said operation is a mental abstract proves of making comparison between two data with no further steps provided.
Hence, the claims explicitly recite numerous elements that, individually and in combination, constitute abstract ideas.
The abstract ideas recited in the claims are evaluated under the Broadest Reasonable Interpretation (BRI) and determined herein to each cover performance either in the mind (calculations by pen and paper) and performance by mathematical operation (calculation as per the recited specific equations as described in the Specification). The limitations of mix, generate, normalize, combine, perform transforms, compare, and determine do not require any particular element for which the human mind is not equipped. (MPEP 2106.04(a)). These recitations are similar to the concepts of collecting information, analyzing it and providing certain results from the collection and analysis (Electric Power Group, LLC, v. Alstom (830 F.3d 1350, 119 USPQ2d 1739 (Fed. Cir. 2016)), organizing and manipulating information through mathematical correlations (Digitech Image Techs., LLC v Electronics for Imaging, Inc. (758 F.3d 1344, 111 U.S.P.Q.2d 1717 (Fed. Cir. 2014)) and comparing information regarding a sample or test to a control or target data in (Univ. of Utah Research Found. v. Ambry Genetics Corp. (774 F.3d 755, 113 U.S.P.Q.2d 1241 (Fed. Cir. 2014) and Association for Molecular Pathology v. USPTO (689 F.3d 1303, 103 U.S.P.Q.2d 1681 (Fed. Cir. 2012)) that the courts have identified as concepts that can be practically performed in the human mind with pen and paper, and can include mathematical concepts.
Further, see MPEP § 2106.04(a)(2), subsection III. The courts do not distinguish between mental processes that are performed entirely in the human mind and mental processes that require a human to use a physical aid (e.g., pen and paper or a slide rule) to perform the claim limitation (see, e.g., Benson, 409 U.S. at 67, 65, 175 USPQ at 674-75, 674: noting that the claimed "conversion of [binary-coded decimal] numerals to pure binary numerals can be done mentally," i.e., "as a person would do it by head and hand."); Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1139, 120 USPQ2d 1473, 1474 (Fed. Cir. 2016): holding that claims to a mental process of "translating a functional description of a logic circuit into a hardware component description of the logic circuit" are directed to an abstract idea, because the claims "read on an individual performing the claimed steps mentally or with pencil and paper"). Nor do the courts distinguish between claims that recite mental processes performed by humans and claims that recite mental processes performed on a computer. As the Federal Circuit has explained, "[c]ourts have examined claims that required the use of a computer and still found that the underlying, patent-ineligible invention could be performed via pen and paper or in a person’s mind" (see Versata Dev. Group v. SAP Am., Inc., 793 F.3d 1306, 1335, 115 USPQ2d 1681, 1702 (Fed. Cir. 2015); Mortgage Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324, 117 USPQ2d 1693, 1699 (Fed. Cir. 2016): holding that computer-implemented method for "anonymous loan shopping" was an abstract idea because it could be "performed by humans without a computer").
Step 2A, Prong 2 Analysis: Integration to a Practical Application
Because the claims do recite judicial exceptions, direction under (2A)(2) provides that the claims must be examined further to determine whether they integrate the abstract ideas into a practical application (MPEP 2106.04(d). A claim can be said to integrate a judicial exception into a practical application when it applies, relies on, or uses the judicial exception in a manner that imposes a meaningful limit on the judicial exception. This is performed by analyzing the additional elements of the claim to determine if the abstract idea is integrated into a practical application (MPEP 2106.04(d).I.; MPEP 2106.05(a-h)). If the claim contains no additional elements beyond the abstract idea, the claim is said to fail to integrate the abstract idea into a practical application (MPEP 2106.04(d).III).
With respect to the instant recitations, the claims recite the following additional elements:
Claim 1:
Obtaining, by at least one computer, a first signal (S1) as a function of a time parameter, wherein the first signal (S1) represents electrocardiogram data of a subject measured by at least one electrocardiogram sensor; obtaining a second signal (S2) as a function of the time parameter, wherein the second signal (S2) represents physiological data of the subject different from the electrocardiogram data and measured by at least one physiological sensor, are operations that serve to get the data for computations in the abstract idea [data gathering], wherein those steps operate to perform functions of collecting the data needed to carry out the abstract idea. Amendments are interpreted herein as steps of obtaining data which further limit the type of data but wherein the data are still “obtained” on a computer and the data came from measurements from ECG and other physiological sensors. It is noted that no actual “measurements” using ECG or other sensors take place in the confines of the claims. As such, data gathering does not impose any meaningful limitation on the abstract idea, or on how the abstract idea is performed. Data gathering steps are not sufficient to integrate an abstract idea into a practical application. (MPEP 2106.05(g).
Claim 2:
wherein the physiological data comprises rheogram data, in particular rheogram data of a blood vessel, further limiting the type of data and thus directed to the data gathering step as described above in claim 1.
Claim 10:
a system comprising…an acquisition unit adapted to…a mixing unit adapted to; a transform unit adapted to, wherein said “units” are interpreted as the algorithms that operate on said generic system and are part of a system representing a generic computer. As such, said system is a tool by which to perform said abstract ideas. The computer system recited in the preamble is generically described with no particular interactions between data, or specific structures of the computer. (MPEP 2106.04(d), 2106.05(f))
Dependent claims 11-14 further limit the “units” of the generic system that limit the additional elements in the independent claim above, for the same reasons.
Step 2B Analysis: Do Claims Provide an Inventive Concept
The claims are lastly evaluated using the (2B) analysis, wherein it is determined that because the claims recite abstract ideas, and do not integrate that abstract ideas into a practical application, the claims also lack a specific inventive concept. Applicant is reminded that the judicial exception alone cannot provide the inventive concept or the practical application and that the identification of whether the additional elements amount to such an inventive concept requires considering the additional elements individually and in combination to determine if they provide significantly more than the judicial exception. (MPEP 2106.05.A i-vi).
With respect to the instant claims, the additional elements of data gathering described above do not rise to the level of significantly more than the judicial exception. As directed in the Berkheimer memorandum of 19 April 2018 and set forth in the MPEP, determinations of whether or not additional elements (or a combination of additional elements) may provide significantly more and/or an inventive concept rests in whether or not the additional elements (or combination of elements) represents well-understood, routine, conventional activity. Said assessment is made by a factual determination stemming from a conclusion that an element (or combination of elements) is widely prevalent or in common use in the relevant industry, which is determined by either a citation to an express statement in the specification or to a statement made by an applicant during prosecution that demonstrates a well-understood, routine or conventional nature of the additional element(s); a citation to one or more of the court decisions as discussed in MPEP 2106(d)(II) as noting the well-understood, routine, conventional nature of the additional element(s); a citation to a publication that demonstrates the well-understood, routine, conventional nature of the additional element(s); and/or a statement that the examiner is taking official notice with respect to the well-understood, routine, conventional nature of the additional element(s).
With respect to the instant claims, the prior art to Odinaka et al. (IEEE Transactions on Information Forensics and Security (2015) Vol. 10:16-27-IDS reference; cited previously) disclose methods and systems of getting signal data in the form of mechanical and electrical signals for the purpose of combing said state to improve performance for cardiovascular biometrics (see Odinaka et al. at p.16 at abstract). As such, those steps directed to getting signal data are well-known, routine and conventional in the art. Further art to WO2014/123512 to Brockway et al. (IDS reference; cited previously) disclose methods and systems of signal data gathering (abstract) and use of various “modules” in a computing environment to do so (Figure 29, as example). As such, those elements directed to the system to perform math (generic computer) are routine and conventional in signal processing arts.
The dependent claims have been analyzed with respect to step 2B and none of these claims provide a specific inventive concept, as they all fail to rise to the level of significantly more than the identified judicial exception.
For these reasons, the claims, when the limitations are considered individually and as a whole, are rejected under 35 USC § 101 as being directed to non-statutory subject matter.
Response to Applicant’s Arguments
1. Applicant states that, “the claimed subject matter of amended claim 1 recites non-abstract, technical improvements over conventional approaches by addressing challenges with differentiating between different physiological states of a living system, for example, differentiating between different states of the artery based on conventional signal conversion and analysis techniques. (Specification at paras. [0003]-[0005].) The claimed solution of amended claim 1 addresses these problems by providing a method that provides for better distinguishability between different states of a living system by mixing physiological data with electrocardiogram data and generating a first frequency spectrum of the mixed signal by subjecting the mixed signal to a first integral transform. The claimed solution further specifies comparing the first frequency spectrum to a second frequency spectrum generated by subjecting the mixed single to a second integral transform different from the first integral transform. This comparison is then used by the at least one computer to determine a physiological condition of the subject”.
Applicant likens the instant claims to those as in Ex Parte Desjardins and includes that “in the present case, amended claim 1 recites a software- based improvement. The claimed method recites a unique approach that involves mixing two signals representing sensor data collected from a subject and generating a frequency spectrum based on the mixed signal, which is used in the subsequent steps to determine a physiological condition of the subject. Amended claim 1 does not merely recite mathematical concepts, methods of organizing human activity or mental processes, but claim 1 as a whole provides a technical solution for using a computer to more accurately determine a physiological condition of a subject based on two types of sensor data… like USPTO Subject Matter Eligibility Example 40, Claim 1, in which a further step is performed based on a comparison of sensed data, in amended claim 1 of the subject application, the claim recites an additional step of determining a physiological condition, which integrates the claim into a practical application.”.
It is respectfully submitted that this is not persuasive. With respect to Ex parte Dejardins, said claims are directed to computer-implemented machine learning, per se, wherein under Step 2A, Prong One the claims were found to recite an abstract idea (mathematical concept) but under Step 2A, Prong Two, the specification was found to identify improvements to how the machine leaning model therein operated, which included specific training of a machine learning morel to learn new tasks while still protecting knowledge about previous tasks to overcome the specific problem of “catastrophic forgetting” that was encountered in the actual continued learning system. Importantly, the limitations from the claims supported said discernment and reflected the specific improvement to the machine. That is to say, the computer itself was improved. This is contrary to the instant claims wherein the improvement achieved is "better" analysis of biological data, and not improvement to the computer itself. The claims fail to include steps by which the computer is improved. Rather, the claims reflect getting data and performing mathematical steps to “determine” a condition. The condition determined is not a specific condition and thus cannot constitute a practical application either. In fact, the step of determining is, itself, a mental abstract step and Applicant will kindly note that an improvement cannot be born from the judicial exception itself, but rather comes from some element in addition that by itself of when considering the claims a whole, provides for significantly more. It is further important to keep in mind that an improvement in the abstract idea itself (e.g. a recited fundamental economic concept) is not an improvement in technology. For example, in Trading Technologies Int’l v. IBG, 921 F.3d 1084, 1093-94, 2019 USPQ2d 138290 (Fed. Cir. 2019), the court determined that the claimed user interface simply provided a trader with more information to facilitate market trades, which improved the business process of market trading but did not improve computers or technology.
2. Applicant states that, “amended claim 1 recites improvements to the technological field of biomedical monitoring and analysis by providing an improved method for determining a physiological condition of a subject. Amended claim 1 does not merely recite automating a conventionally manual process. Instead, claim 1 recites specific steps that are not well-understood, routine, or conventional, for example, "mixing, by the at least one computer, the first signal (Si) and the second signal (S2) to obtain a mixed signal (M) [and] generating, by the at least one computer, a first frequency spectrum based at least in part on the mixed signal (M) by subjecting the mixed signal (M) to a first integral transform." These steps provide a way in which a clearer and more accurate distinction between physiological states is able to be determined, improving biomedical monitoring and analysis technology. While the claim is related to mathematical concepts, the claim as a whole recites a method that determines a physiological condition using a unique approach that amounts to significantly more than any underlying mathematical concepts”.
It is respectfully submitted that this is not persuasive. First, with respect to improvement to determining a physiological condition, it is noted that there are not specific steps directed to any particular physiological condition nor are there steps that would provide for meaning as pertains to making a determination of a condition based on some comparison of two frequency spectrums as claimed. Second, it is maintained, as above that determining is, itself, a mental abstract step and Applicant will kindly note that an improvement cannot be born from the judicial exception itself, but rather comes from some element in addition that by itself of when considering the claims a whole, provides for significantly more. It is further important to keep in mind that an improvement in the abstract idea itself (e.g. a recited fundamental economic concept) is not an improvement in technology. For example, in Trading Technologies Int’l v. IBG, 921 F.3d 1084, 1093-94, 2019 USPQ2d 138290 (Fed. Cir. 2019), the court determined that the claimed user interface simply provided a trader with more information to facilitate market trades, which improved the business process of market trading but did not improve computers or technology.
As such, the claims remain patent ineligible under 35 USC 101.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
1. Claims 1, 3-6, 8-12, and 14-15 are rejected under 35 U.S.C. 102(a)(1) as being unpatentable by Zong et al. (2009 IEEE International Symposium on Signal Processing and Information Technology (ISSPIT), Ajman, United Arab Emirates, 2009, pp. 334-339, doi: 10.1109/ISSPIT.2009.5407547; 6 pages). This is a new grounds of rejection and is necessitated by claim amendment herein.
With respect to claims 1 and 10, Zong et al. disclose:
A method for converting physiological signals, comprising:
obtaining, by at least one computer, a first signal (Si) as a function of a time parameter, wherein the first signal (Si) represents electrocardiogram data of a subject measured by at least one electrocardiogram sensor; obtaining, by the at least one computer, a (Zong et al. disclose obtaining physiological signals that include ECG signals in the time domain at p. 2, cols. 1-2)
obtaining, by the at least one computer, a second signal (S2) as a function of the time parameter, wherein the second signal (S2) represents physiological data of the subject different from the electrocardiogram data and measured by at least one physiological sensor (Zong et al. disclose obtaining physiological signals that include other signals, such as EMG, SC, and RSP signals in the time domain at p. 2, cols. 1-2);
mixing, by the at least one computer, the first signal (Si) and the second signal (S2) to obtain a mixed signal (M) (Zong et al. disclose the architecture at Figure 2 that includes merging information from IMFs at p. 3, cols. 1-2);
generating, by the at least one computer, a first frequency spectrum based at least in part on the mixed signal (M) by subjecting the mixed signal (M) to a first integral transform (Zong et al. disclose the architecture at Figure 2 that includes transform of the mixed signal to generate frequency spectra at p. 3., col. 2) ;
comparing, by the at least one computer, the first frequency spectrum with a second frequency spectrum, wherein the second frequency spectrum is generated by subjecting the mixed signal (M) to a second integral transform different from the first integral transform (Zong et al. disclose multiple frequency transform and comparison of features at page 4, col. 2; p. 5, col. 1; Table 1; Table 3) ; and
determining, by the at least one computer, a physiological condition of the subject based at least in part on the comparison of the first frequency spectrum with the second frequency spectrum (Zong et al. disclose discernment of emotional state using said techniques at p. 4, col. 2).
Independent claim 10 is directed to units to get data, mix data and transform data for operation of the above methods, wherein the prior art to et al. disclose “systems” for performance of the operations as described at least at page 1-data acquisition from a database and use of machine learning). As the “units” of the instant claims are interpreted as those that are the process algorithms for the “system” as operational on a computer, the prior art meets said limitations.
With respect to claims 3, 4, and 11, Zong et al. disclose normalization of signals at p. 2, col. 2.
With respect to claims 5 and 12, Zong et al. disclose combining signals with equal weights at p. 3, col. 2.
With respect to claim 6, Zong et al. disclose signal sums at p. 3, col. 2.
With respect to claims 8-9 and 14, Zong et al. disclose Fourier transform and comparison of frequencies at p. 3, col. 2; Figure 4; p. 4, col. 2.
With respect to claim 15, Zong et al. disclose assessment of the best feature for distinguish physiological conditions at p. 4, col. 2.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
1. Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Zong et al. (2009 IEEE International Symposium on Signal Processing and Information Technology (ISSPIT), Ajman, United Arab Emirates, 2009, pp. 334-339, doi: 10.1109/ISSPIT.2009.5407547; 6 pages), as applied to claim 1 above and in view of Hafid et al. (Journal of Sensors (2018) Vol. 2018), Article ID 3269534; 7 pages).
With respect to claim 1, Zong et al. disclose:
A method for converting physiological signals, comprising:
obtaining, by at least one computer, a first signal (Si) as a function of a time parameter, wherein the first signal (Si) represents electrocardiogram data of a subject measured by at least one electrocardiogram sensor; obtaining, by the at least one computer, a (Zong et al. disclose obtaining physiological signals that include ECG signals in the time domain at p. 2, cols. 1-2)
obtaining, by the at least one computer, a second signal (S2) as a function of the time parameter, wherein the second signal (S2) represents physiological data of the subject different from the electrocardiogram data and measured by at least one physiological sensor (Zong et al. disclose obtaining physiological signals that include other signals, such as EMG, SC, and RSP signals in the time domain at p. 2, cols. 1-2);
mixing, by the at least one computer, the first signal (Si) and the second signal (S2) to obtain a mixed signal (M) (Zong et al. disclose the architecture at Figure 2 that includes merging information from IMFs at p. 3, cols. 1-2);
generating, by the at least one computer, a first frequency spectrum based at least in part on the mixed signal (M) by subjecting the mixed signal (M) to a first integral transform (Zong et al. disclose the architecture at Figure 2 that includes transform of the mixed signal to generate frequency spectra at p. 3., col. 2) ;
comparing, by the at least one computer, the first frequency spectrum with a second frequency spectrum, wherein the second frequency spectrum is generated by subjecting the mixed signal (M) to a second integral transform different from the first integral transform (Zong et al. disclose multiple frequency transform and comparison of features at page 4, col. 2; p. 5, col. 1; Table 1; Table 3) ; and
determining, by the at least one computer, a physiological condition of the subject based at least in part on the comparison of the first frequency spectrum with the second frequency spectrum (Zong et al. disclose discernment of emotional state using said techniques at p. 4, col. 2).
Zong et al. do not specifically disclose that the physiological data are data from rheogram data. However, the prior art to Hafid et al. disclose simultaneous recording of ICG and ECG signals for the assessment of health monitoring (abstract).
As such, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing data of the claimed invention to have also included the measurement of rheogram signals as one of the physiological data for inclusion with ECG data, as it is advantageous to monitor said signals in tandem for non-invasive health monitoring. Hafid et al. discuss the advantages of doing so at p. 5, col. 2. As such, one would have had a reasonable expectation of success in using these types of signals as combined with ECG signals as described in Hafid et al. with the techniques as disclosed in Zong et al. Both references are in the same field of endeavor and would have had further expectation as such.
Response to Applicant’s Arguments
1. Applicant’s arguments with respect to the prior art rejections in the Non-final Office Action under 35 USC 102 and 35 USC 103 have been considered but are moot in view of the new grounds of rejection set forth above and as necessitated by claim amendment herein.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/Lori A. Clow/Primary Examiner, Art Unit 1687